How Janice Rogers Brown Learned To Stop Worrying and Love the Great Depression

Lochner v. New York stands with Dred Scott v. Sandford as one of the most reviled Supreme Court decisions in the nation’s history. Liberals and conservatives alike have denounced it. Robert Bork called it an abomination. FDR accused the Lochner Court of mak[ing] our democracy impotent.

In his famous, all too famous, dissent in Lochner, Justice Holmes wrote that the “constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.” Yes, one of the greatest (certainly one of the most quotable) jurists this nation has ever produced; but in this case, he was simply wrong. That Lochner dissent has troubled me — has annoyed me — for a long time and finally I understand why. It’s because the framers did draft the Constitution with a surrounding sense of a particular polity in mind.